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To fix the Judicial Service Commission, should the number of politicians be watered down?

To fix the Judicial Service Commission, should the number of politicians be watered down?

It has been increasingly clear in the past few years that the Judicial Service Commission, which plays a key role in shaping and managing the South African judiciary, is not functioning as it should. Two reports released this week come to similar conclusions about what is amiss — and a key factor identified is the number of politicians among its members.

If a book were to be written about the recent history of the Judicial Service Commission (JSC) — the body with significant influence in the selection of South African judges — there would be no shortage of “colourful” anecdotes.

It might include the occasion in April 2021 when former Chief Justice Mogoeng Mogoeng delivered such a tongue-lashing to Judge Piet Koen, who was interviewing for a position on the Supreme Court of Appeal, that Koen said recently he considered leaving the judiciary as a result. Mogoeng’s gripe with Koen was based on the latter’s alleged rudeness at a 2016 meeting; it subsequently emerged that Mogoeng had mistaken Koen for someone else.

Such a book would have to cover commissioner Dali Mpofu’s schoolboy sexual innuendo targeted at Judge Mandisa Maya when Maya was interviewing for the Chief Justice position in February.

It would need to chronicle the brutal hammering of Judge Dhaya Pillay by commissioner Julius Malema in April 2021, culminating in his proclamation: “You are no judge, and you deserve no high office.”

Perhaps it would sketch out the time, during the same April session, that commissioner Griffiths Madonsela voiced concern that advocate Lawrence Lever’s Jewish faith might mean that his “observation of the Sabbath would interfere with judicial duties”.

It would surely include mention of the incident in the February 2022 Chief Justice interviews where Judge Dunstan Mlambo was made to respond on the spot to anonymous sexual harassment rumours introduced by commissioner Mpofu.

It would have to note the fact that interviews held by the JSC have varied in length from literally three minutes to almost three hours. It might want to list some of the extraordinarily gifted legal figures who have faced repeat rejection by the JSC: among them, advocate Geoff Budlender and Judge David Unterhalter.

This book would be quite long, and would probably make for fairly riveting reading — in a car-crash-viewing kind of way. As yet, such a book does not exist. But two new reports, collectively running to several hundred pages in length, have taken on the task of charting the JSC’s decline and making recommendations as to how it might be turned around.

Freedom Under Law and Helen Suzman Foundation both release JSC reviews

Shortly before both the Helen Suzman Foundation (HSF) and the Freedom Under Law’s (FUL’s) JSC reports were released, the body itself announced it was soliciting public feedback on a new set of draft criteria it had drawn up to guide judicial appointments.

As FUL researcher Calli Solik noted on Tuesday, this itself is a tacit acknowledgement that “in previous years there has been no real guidance” as to how the JSC should make its decisions.

Nonetheless, it has been greeted as a welcome step forward.

But both HSF and FUL suggest that there are multiple other interventions which are necessary to bring about true JSC reform.

Central to the analysis of both NGOs is the current lack of transparency from the JSC, with researchers from both bodies reporting the difficulty of accessing the JSC’s annual reports and similar documents which should be readily available for public scrutiny.

The JSC should establish its own website with up-to-date information, proposes FUL. HSF agrees, citing this as one of a number of needed infrastructural remedies; others include the strengthening of the capacity of the JSC Secretariat.

The problem of race and gender

It is no secret that white male candidates have seemed unpopular at the JSC in recent years — although some commentators suggest it is a particular type of intellectual white male candidate that has seemed to bring out the worst in commissioners.

White candidates have also been grilled on whether they would serve as agents of transformation in a way that candidates of colour are spared, with the implication being that appointments from the latter group would be transformative in themselves in a way that white appointments could never be.

This is something HSF criticises in its report, stating: “Being of a specific race and/or gender is not enough in and of itself to enhance the legitimacy of the judiciary.”

The HSF report also notes that a recent Supreme Court of Appeal judgment regarding the appointment processes of the Magistrates Commission found that it would be “quite untenable” for candidates to be excluded at early phases of the recruitment process “for no other reason but their race”.

FUL suggests that one of the problems with the current approach is that the demographics of the South African judiciary are not static.

“The race and gender composition of the judiciary as a whole, and of each court specifically, changes with each new judicial appointment,” said FUL.

What this means is that in one court it might be perfectly appropriate to weigh race and gender factors more heavily than in another which has, for the time being, achieved a composition that broadly reflects South African society.

The FUL report suggests that the JSC should, ahead of interviews, “prepare a report on the current gender and race demographics of the court which has the vacancy”. This would give the commissioners a sense of the demographic gaps, if any, to be taken into consideration when selecting candidates.

Are too many politicians spoiling the broth?

The fact that 11 members of the 23-person JSC are drawn from the political sphere is a problem, say both HSF and the FUL. Both reports point out that by international standards, the JSC is unusually large and has unusually high political representation.

HSF notes that the number of “political members” of the JSC effectively rises to 15 with the addition of the four members designated by the sitting President.

“The high level of political representativity increases the chances of endangering the neutrality of the judiciary, which is essential to the independence of the judiciary as required by the Constitution,” the HSF report states.

UCT law professor Hugh Corder said on Tuesday, at the launch of the FUL report, that this feature of the body is a hangover from the transition to democracy. The interim Constitution made allowance for fewer politicians to be represented; the fact that more were ultimately included “was supposed to be an inclusive transitional measure”.

HSF’s recommendations would see the number of politicians on the commission roughly halved (three MPs, three NCOP delegates, and two presidential appointments).

FUL would also like to see a reduction in the number of political appointees, but suggests this will be both difficult — because it will require a constitutional amendment — and insufficient, because what is required in addition is a “shift in perspective”.

The FUL report proposes that in addition to slashing the number of politicians, the number of senior judges on the JSC should be increased.

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“These suggestions are necessitated by the current imbalance in the JSC, which requires only eight of the 23 members to have qualifications in law, and only seven with actual experience in the administration of justice,” it states.

FUL is undoubtedly correct that solely reducing political appointments is not a magic bullet for the JSC. The best possible illustration of this is found in the fact that ex-commissioner Mpofu, arguably responsible for a disproportionate amount of JSC dysfunction in recent years, was technically one of the legal — rather than political — representatives on the commission.

Mpofu’s outsized influence on the JSC represents another thorny problem for reform attempts: how to deal with “individual commissioners … intent on pursuing external and irrelevant objectives”, in FUL’s diplomatic phrasing.

Here, both think tanks recommend a code of conduct for commissioners, with FUL adding the need for training and orientation for new members.

Also important: FUL proposes clear mechanisms for the “recall of errant commissioners by their constituencies”, and the implementation of disciplinary mechanisms for such commissioners.

The most recent sitting of the JSC already seemed to suggest that calmer waters for the JSC lay ahead. But as the past few years have shown, far too much rises and falls on the individual personalities within the JSC at any given time. Let’s hope the constructive analysis and proposals put forward by Freedom Under Law and the Helen Suzman Foundation are given the consideration they warrant from judicial authorities. DM


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